Hobet Mining, LLC v. Carl Epling, Jr.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 12-0404-BLA,12-0404-A-BLA. [999566500]. [13-1738]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1738
HOBET MINING, LLC,
Petitioner,
v.
CARL
R.
EPLING,
JR.;
DIRECTOR,
OFFICE
OF
WORKERS'
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(12-0404-BLA; 12-0404-A-BLA)
Argued:
January 29, 2015
Decided:
April 17, 2015
Before KEENAN, FLOYD, and HARRIS, Circuit Judges.
Petition for review denied by published opinion.
Judge Harris
wrote the opinion, in which Judge Keenan and Judge Floyd joined.
ARGUED:
William
Steele
Mattingly,
JACKSON
KELLY
PLLC,
Morgantown,
West
Virginia,
for
Petitioner.
Sean
Gregory
Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.;
Leonard Joseph Stayton, Inez, Kentucky, for Respondents.
ON
BRIEF:
Ashley M. Harman, JACKSON KELLY PLLC, for Petitioner.
M. Patricia Smith, Solicitor of Labor, Rae Ellen James,
Associate Solicitor, Gary K. Stearman, Counsel for Appellate
Litigation, Sarah M. Hurley, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent
Director, Office of Workers' Compensation Programs, United
States Department of Labor.
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PAMELA HARRIS, Circuit Judge:
Hobet
Mining,
LLC
(“Hobet”)
petitions
for
review
of
a
decision awarding black lung benefits to Carl R. Epling, Jr.
(“Epling”).
The administrative law judge (“ALJ”) found that
Epling was entitled to the benefit of the so-called “fifteenyear
presumption,”
a
statutory
provision
that
presumes
eligibility for benefits when a claimant suffers from a totally
disabling respiratory or pulmonary impairment and has fifteen
years
of
qualifying
§ 921(c)(4).
coal
Because
mine
Hobet
employment.
had
failed
See
to
30
U.S.C.
rebut
that
presumption, the ALJ concluded, Epling was entitled to benefits.
We
find
that
the
ALJ’s
determinations
were
supported
by
substantial evidence, and we therefore deny the petition for
review.
I.
A.
The Black Lung Benefits Act (“Act”) provides benefits to
“coal miners who are totally disabled due to pneumoconiosis,”
popularly known as black lung disease.
30 U.S.C. § 901(a).
To
prove entitlement to black lung benefits in the absence of the
fifteen-year presumption, an individual must show that he has
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pneumoconiosis arising from coal mine employment, 1 and that this
disease is a substantially contributing cause of his totally
disabling respiratory or pulmonary impairment.
See Mingo Logan
Coal Co. v. Owens, 724 F.3d 550, 555 (4th Cir. 2013). 2
“[T]he existence and causes of pneumoconiosis are difficult
to
determine,”
and
Congress
accordingly
has
“established
a
number of evidentiary presumptions to assist miners in proving
their
claims.”
Broyles
v.
Dir.,
Office
Programs, 824 F.2d 327, 328 (4th Cir. 1987).
fifteen-year
presumption
at
issue
in
of
Workers’
Comp.
Among them is the
this
case,
30
U.S.C.
§ 921(c)(4), which was enacted in 1972, eliminated in 1981, and
then
restored
in
2010. 3
The
fifteen-year
presumption
is
1
Since the 1978 amendments to the Act, the statutory
definition of “pneumoconiosis” has encompassed not only the
diseases medically known as pneumoconiosis, but also any chronic
lung disease or impairment arising from coal mine employment, as
well as the impairments that result from any such disease. See
30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a).
2
In some cases, we have further subdivided these elements
of a black lung claim into four separate components. See Mingo
Logan, 724 F.3d at 555 (a claimant must show (1) that he has
pneumoconiosis; (2) that his pneumoconiosis arises from coal
mining employment; (3) that he is totally disabled by a
respiratory or pulmonary impairment; and (4) that pneumoconiosis
is a substantially contributing cause of his disability).
However the elements are counted, the substance of the claim is
the same.
3
Black Lung Benefits Act of 1972, Pub. L. No. 92-303,
§ 4(c), 86 Stat. 150, 154 (1972); Black Lung Revenue Act of
1981, Pub. L. No. 97-119, § 202(b)(1), 95 Stat. 1635, 1643
3
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expressly
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intended
to
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“[r]elax”
the
“often
insurmountable
burden” of proving a black lung claim for the special class of
“miners
with
15
years
experience
who
respiratory or pulmonary impairment.”
reprinted
in
1972
U.S.C.C.A.N.
2305,
are
disabled
by
a
S. Rep. 92-743 (1972),
2306.
Through
the
presumption, Congress has “singled out” this group of miners for
“special treatment,” making it easier for them to show their
entitlement
Amendments
to
to
benefits.
the
Black
Regulations
Lung
Benefits
Implementing
Act:
the
Byrd
Determining
Coal
Miners’ and Survivors’ Entitlement to Benefits, 78 Fed. Reg.
59102, 59105-07 (Sept. 25, 2013); see also West Virginia CWP
Fund v. Bender, — F.3d — , No. 12-2034, slip op. at 23 (4th Cir.
Apr. 2, 2015).
To that end, § 921(c)(4) provides that,
if a miner was employed for fifteen years or
more in one or more underground coal mines,
. . . and if other evidence demonstrates the
existence of a totally disabling respiratory
or pulmonary impairment, then there shall be
a rebuttable presumption that such miner is
totally disabled due to pneumoconiosis.
Under the presumption, if a claimant has at least fifteen years
of underground coal mine employment and a qualifying respiratory
or pulmonary disability, a rebuttable presumption arises that he
(1981); Patient Protection and Affordable Care Act, Pub. L. No.
111-148, § 1556, 124 Stat. 119, 260 (2010).
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is entitled to benefits.
of
the
showing
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In other words, we presume both prongs
required
for
benefits
eligibility:
that
the
claimant has pneumoconiosis arising from coal mine employment,
and that this disease is a substantially contributing cause of
his disability.
A
coal
See Mingo Logan, 724 F.3d at 555.
mine
operator
may
defeat
rebutting either of these presumptions.
the
miner’s
claim
by
First, an operator may
establish that the miner does not have pneumoconiosis arising
from
coal
mine
employment.
20 C.F.R.
§
718.305(d)(1)(i).
Second, the operator may establish that “no part” of the miner’s
disability
was
caused
by
such
a
disease,
id.
§ 718.305(d)(1)(ii), a standard under which it must “rule out”
the mining-related disease as a cause of the miner’s disability,
Bender, slip op. at 8; Rose v. Clinchfield Coal Co., 614 F.2d
936, 939 (4th Cir. 1980).
B.
After working for over twenty-one years in underground coal
mines — most recently for petitioner Hobet in 1999 — respondent
Epling is unable to exert himself at all without experiencing
shortness of breath.
Because this impairment prevents Epling
from
previous
performing
his
coal
mine
employment,
which
required heavy manual labor, it constitutes a totally disabling
respiratory impairment for purposes of the Act.
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Epling filed this claim for benefits under the Act in 2007.
Due to Epling’s long history of coal mine employment and totally
disabling respiratory impairment, the ALJ reviewing his claim
applied the fifteen-year presumption, reinstated in 2010 while
Epling’s case was pending.
As required by that provision, the
ALJ presumed both (1) that Epling has pneumoconiosis arising
from coal mine employment, and (2) that Epling’s pneumoconiosis
is a cause of his disabling respiratory impairment.
Together,
those presumptions qualify Epling for benefits, absent rebuttal
by Hobet.
On the first presumption — the existence of pneumoconiosis
arising from coal mine employment — the ALJ found that Epling
does
indeed
have
pneumoconiosis
employment.
Hobet
does
Accordingly,
only
the
not
arising
contest
second
from
that
presumption
his
finding
—
coal
on
that
mine
appeal.
Epling’s
pneumoconiosis is a cause of his disability — is at issue here.
To
rebut
that
disability-causation
presumption,
Hobet
presented the ALJ with testimony from two doctors, Dr. Robert J.
Crisalli (“Crisalli”) and Dr. Kirk Hippensteel (“Hippensteel”).
The ALJ discredited Crisalli’s testimony in a finding that Hobet
does not challenge on appeal, and Hobet now relies entirely on
Hippensteel’s opinion, set forth in a number of submissions over
the course of this litigation.
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Critically,
Hippensteel
in
was
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submissions
made
unpersuaded
between
that
Epling
2008
and
2011,
suffered
from
pneumoconiosis at all, though he conceded that the evidence was
not unequivocal.
As the ALJ explained, after reviewing chest CT
scans, Hippensteel believed “that the evidence did not indicate
pneumoconiosis.”
J.A. 80.
In this key respect, Hippensteel’s
opinion was directly contrary to the ALJ’s finding that Epling
did have pneumoconiosis arising from coal mine employment.
Hippensteel attributed Epling’s respiratory impairments not
to
pneumoconiosis
apnea.
rays.
but
instead
entirely
to
obesity
and
sleep
Hippensteel acknowledged abnormalities in Epling’s xHe believed, however, that it would be “unusual” for
Epling to have developed pneumoconiosis over ten years after he
left work in the coal mines.
See J.A. 89.
And in light of the
evidence against pneumoconiosis, he reasoned, it followed that
the
abnormalities
were
the
result
of
the
obesity
and
sleep
apnea.
At
the
same
time,
Hippensteel
asserted
that
even
if,
hypothetically, Epling did have pneumoconiosis arising from coal
mine employment, that disease would not be the cause of his
impairment.
agreement
By way of explanation, Hippensteel offered only his
with
the
views
of
Crisalli,
the
now-discredited
expert, reciting Crisalli’s opinion as to the cause of Epling’s
gas exchange impairment.
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In February of 2012, upon review of additional CT scans,
Hippensteel’s diagnostic opinion changed, and he concluded that
Epling did indeed suffer from pneumoconiosis arising from coal
mine employment.
analysis
recited
in
But Hippensteel did not revisit his causation
light
again
of
his
this
prior
new
finding.
conclusion
that
Instead,
Epling’s
he
simply
respiratory
problems were not caused by pneumoconiosis.
Reviewing this evidence, the ALJ made the determination —
central
to
this
appeal
—
that
Hippensteel’s
opinion
that
pneumoconiosis did not cause Epling’s disability was entitled to
“little weight” because (1) the doctor had failed to diagnose
pneumoconiosis,
finding;
and
in
(2)
direct
contradiction
Hippensteel’s
position
to
the
“that
it
ALJ’s
own
would
be
unusual for [Epling] to have pneumoconiosis ten years after he
ended his coal mine employment” was “not in accord with the
accepted view that [coal workers’ pneumoconiosis] is both latent
and progressive.”
J.A. 89; see also J.A. 98.
Having discounted
that key testimony, the ALJ went on to find that Hobet could not
rebut the presumption that Epling’s pneumoconiosis is a cause of
his disability, and awarded benefits to Epling.
The
decision.
Benefits
Review
Board
(“Board”)
affirmed
the
ALJ’s
On the weight to be given Hippensteel’s opinion, the
Board, citing Scott v. Mason Coal Co., 289 F.3d 263 (4th Cir.
2002), invoked the well-established rule discrediting causation
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testimony by a doctor who fails to diagnose pneumoconiosis when,
as here, an ALJ has made a contrary finding.
In such cases, a
doctor’s opinion as to causation may not be credited at all
unless
there
are
“‘specific
and
persuasive
reasons’”
for
concluding that the doctor’s view on causation is independent of
his
or
her
mistaken
pneumoconiosis,
in
“little weight.”
belief
which
that
case
it
the
claimant
may
be
does
assigned,
not
at
have
most,
Scott, 289 F.3d at 269-70 (quoting Toler v. E.
Associated Coal Co., 43 F.3d 109, 116 (4th Cir. 1995)).
Applying that standard, the Board held that the ALJ had
“rationally
discounted”
Hippensteel’s
opinion.
J.A.
98.
Hippensteel’s failure to diagnose pneumoconiosis could not be
salvaged, the Board explained, by his hypothetical “assumption
of
the
J.A.
existence”
99.
And
of
pneumoconiosis
though
Hippensteel
in
deposition
ultimately
testimony.
accepted
the
diagnosis of pneumoconiosis in 2012, the Board reasoned, all of
his discussion of his causation opinion predated that change of
mind, and was coupled with his former unwillingness to diagnose
pneumoconiosis.
The Board therefore affirmed the ALJ’s findings
as to causation and the award of benefits to Epling.
Hobet timely filed this petition for review, arguing that
the
ALJ
and
the
Board
improperly
9
discredited
Hippensteel’s
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opinion regarding the cause of Epling’s disability. 4
For the
reasons that follow, we disagree.
II.
A.
Our review of a decision awarding black lung benefits is
“limited.”
Programs,
Harman Mining Co. v. Dir., Office of Workers’ Comp.
678
F.3d
305,
310
(4th
Cir.
2012).
We
ask
only
“whether substantial evidence supports the factual findings of
the ALJ and whether the legal conclusions of the [Board] and ALJ
are rational and consistent with applicable law.”
To
determine
whether
this
standard
has
Id.
been
met,
we
consider “whether all of the relevant evidence has been analyzed
and whether the ALJ has sufficiently explained his rationale in
crediting certain evidence.”
Mingo Logan, 724 F.3d at 557.
But
it is for the ALJ, as the trier of fact, to make factual and
4
Hobet also argues that the ALJ and Board erred by holding
its rebuttal evidence on causation to the rule-out standard of
20 C.F.R. § 718.305(d)(1).
According to Hobet, the rule-out
standard is unduly strict and inconsistent with the Act, which
must be read to allow rebuttal by a showing that pneumoconiosis
is not a “substantially contributing” cause of a claimant’s
disability.
Because we conclude that Hippensteel’s opinion was
properly discredited, leaving Hobet with insufficient rebuttal
evidence under either standard, resolution of that issue is not
dispositive here. We note, however, that the same challenge to
the rule-out standard was addressed and rejected by our recent
decision in West Virginia CWP Fund v. Bender, — F.3d —, No. 122034, slip op. at 28-29 (4th Cir. Apr. 2, 2015).
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credibility determinations, see id., and we therefore “defer to
the ALJ’s evaluation of the proper weight to accord conflicting
medical opinions,” Harman, 678 F.3d at 310.
So long as an ALJ’s
findings in this regard are supported by substantial evidence,
they must be sustained.
See id.
B.
The
question
in
this
appeal
is
whether
Hippensteel’s
opinion regarding the cause of Epling’s disability was properly
discredited.
In particular, we consider whether the ALJ and the
Board erred by discrediting Hippensteel’s causation analysis on
the basis of his failure to diagnose pneumoconiosis arising from
coal mine employment.
As the Board recognized, we are not writing on a clean
slate.
Long-standing
precedent
establishes
that
a
medical
opinion premised on an erroneous finding that a claimant does
not suffer from pneumoconiosis is “not worthy of much, if any,
weight,”
particularly
with
respect
to
disability was caused by that disease.
whether
a
claimant’s
Grigg v. Dir., Office of
Workers’ Comp. Programs, 28 F.3d 416, 419 (4th Cir. 1994).
is
a
common-sense
rule,
for
the
credibility
of
a
This
doctor’s
judgment as to whether pneumoconiosis is a cause of a miner’s
disability
is
necessarily
influenced
by
the
accuracy
of
his
underlying diagnosis, which lies at the heart of any claim for
black lung benefits.
See Toler, 43 F.3d at 116.
11
“It is usually
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exceedingly
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difficult
for
a
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doctor
to
properly
assess
the
contribution, if any, of pneumoconiosis to a miner’s death [or
disability] if [the doctor] does not believe [pneumoconiosis]
was
present.”
Soubik
v.
Dir.,
Office
of
Workers’
Comp.
Programs, 366 F.3d 226, 234 (3d Cir. 2004).
Thus,
opinions
that
erroneously
fail
to
diagnose
pneumoconiosis may not be credited at all, unless an ALJ is able
to “identify specific and persuasive reasons for concluding that
the doctor’s judgment on the question of disability causation
does not rest upon” the “predicate[]” misdiagnosis.
Toler, 43
F.3d at 116 (vacating ALJ finding on disability causation where
ALJ relied upon the opinions of doctors who erroneously failed
to diagnose pneumoconiosis); see also Scott, 289 F.3d at 269-70
(same).
carry
And even when those opinions are credited, they may
only
analysis.
“little
weight”
in
the
decision-maker’s
causation
Scott, 289 F.3d at 269 (even if there were specific
and persuasive reasons to credit opinions failing to diagnose
pneumoconiosis, ALJ impermissibly “accorded those opinions far
more than the little weight they are allowed”).
In this case, we agree with the Board that Hippensteel’s
opinion
was
entitled
assigned it by the ALJ.
to
no
more
than
the
“little
weight”
First and most critically, Hippensteel
failed to diagnose Epling’s pneumoconiosis, directly contrary to
the finding of the ALJ.
Under cases like Scott and Toler, that
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failure, by itself, would bar the ALJ from giving Hippensteel’s
opinion
as
to
disability
causation
“little weight” he accorded it.
anything
more
than
the
See Scott, 289 F.3d at 269-70;
Toler, 43 F.3d at 116.
Moreover, this is not a case in which there are “specific
and persuasive reasons” for thinking that a doctor’s view of
disability causation is independent from any misdiagnosis.
Toler, 43 F.3d at 116.
See
On the contrary, substantial evidence
supports the conclusion that Hippensteel’s disability-causation
opinion
was
closely
tied
to
his
belief
that
Epling
did
not
suffer from pneumoconiosis arising from coal mine employment.
Indeed, Hippensteel himself explained that it was because the
evidence
in
the
record
did
not
substantiate
a
diagnosis
of
pneumoconiosis that he attributed the irregularities in Epling’s
x-rays to obesity and sleep apnea instead.
That reasoning is
irreconcilable with the ALJ’s conclusion that Epling does in
fact have pneumoconiosis.
See id. at 115 (finding it difficult
“to understand how the ALJ could credit” the causation analysis
of
doctors
who
simultaneously
finding
pneumoconiosis”).
failure
to
failed
to
that
diagnose
[the
pneumoconiosis
claimant]
did
suffer
“while
from
And it leaves no space between Hippensteel’s
diagnose
pneumoconiosis
and
his
assessment
pneumoconiosis was not a cause of Epling’s disability.
that
Under
those circumstances, the ALJ properly discredited Hippensteel’s
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opinion.
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See id. at 116 (ALJ “may not credit” doctor’s opinion
on causation absent “specific and persuasive” showing that it is
not linked to an erroneous failure to diagnose pneumoconiosis).
Hobet argues that Hippensteel salvaged the credibility of
his
causation
opinion
when
he
asserted
that
he
would
have
reached the same conclusion even assuming that Epling did have
pneumoconiosis.
We disagree.
A medical expert of course may
opine credibly as to disability causation under an alternative
set
of
circumstances.
See,
e.g.,
Island
Creek
Compton, 211 F.3d 203, 214 (4th Cir. 2000).
Coal
Co.
v.
But as we have
held, it is not enough for the expert simply to recite, without
more,
that
his
causation
opinion
claimant had pneumoconiosis.
Rather,
causation
such
an
opinion,
alternative
must
be
would
not
change
if
the
See Scott, 289 F.3d at 268-69.
causation
accompanied
analysis,
by
some
like
any
reasoned
explanation — in this context, an explanation of why the expert
would continue to believe that pneumoconiosis was not the cause
of a miner’s disability, even if pneumoconiosis were present.
That is what is missing in this case:
Hippensteel does not
provide any independent analysis of the factors that would lead
him to attribute Epling’s impairment to obesity and sleep apnea
even if the factual premise for his opinion — that Epling does
not have pneumoconiosis — were overridden.
Instead, he simply
endorses and paraphrases Crisalli’s view of the gas exchange
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evidence
—
a
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view
that
was
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itself
discredited
by
the
ALJ.
Repetition of another expert’s discredited analysis does nothing
to enhance the credibility of Hippensteel’s own views, and it
does
not
constitute
the
reasoned
explanation
support an alternative causation analysis.
explanation,
Hippensteel’s
alternative
necessary
to
And without such an
opinion
is
just
a
“superficial hypothetical” that cannot be reconciled with the
existence of the mining-related pneumoconiosis found by the ALJ.
Soubik, 366 F.3d at 234 (quotation marks omitted).
Nor is Hippensteel’s opinion as to causation rendered sound
by his late-breaking determination, in 2012, that Epling does in
fact have pneumoconiosis.
of
Hippensteel’s
As the Board explained, the entirety
causation
reasoning
predates
his
ultimate
diagnosis of pneumoconiosis and, as discussed, rests primarily
on the absence of that disease.
At no point after diagnosing
pneumoconiosis did Hippensteel revisit his earlier opinion to
take into account the elimination of what had been the factual
predicate for his view.
So again, the ALJ was left without any
explanation, in reports or testimony, of how Hippensteel might
be able to reach the same conclusion regarding the cause of
Epling’s disability in light of his changed opinion regarding
Epling’s diagnosis.
Absent that explanation, Hippensteel’s 2012
restatement of his causation opinion was no more credible than
its earlier iterations, and the ALJ permissibly discounted it.
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In
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short,
Hippensteel’s
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initial
failure
to
diagnose
pneumoconiosis was cured neither by his hypothetical assumption
of
pneumoconiosis
diagnosis.
nor
Even
by
his
standing
subsequent
alone,
this
embrace
justified the ALJ’s credibility determination.
F.3d at 269-70.
that
would
defect
of
have
See Scott, 289
But in this case, Hippensteel’s failure to
diagnose pneumoconiosis did not stand alone.
Instead, it came
with the doctor’s testimony that it would be unusual for Epling
to have developed pneumoconiosis over ten years after he left
work in the coal mines — a judgment, the ALJ explained, that is
“not
in
accord
with
the
accepted
view
that
[coal
pneumoconiosis] is both latent and progressive.”
workers’
J.A. 89.
The
ALJ was entitled to take this disagreement, too, into account in
“evaluat[ing]
.
.
.
the
proper
weight
to
accord
[the]
conflicting medical opinions” at issue in this case, Harman, 678
F.3d at 311 (quoting Stiltner v. Island Creek Coal Co., 86 F.3d
337, 342 (4th Cir. 1996)), further bolstering his decision to
discount
Hippensteel’s
opinion.
When
these
grounds
for
discrediting Hippensteel’s causation opinion are taken together,
they undoubtedly provide the substantial evidence necessary to
affirm on appeal the ALJ’s finding that Hobet had failed to
rebut the fifteen-year presumption.
16
See id. at 310.
Appeal: 13-1738
Doc: 84
Filed: 04/17/2015
Pg: 17 of 17
III.
For the foregoing reasons, we deny the petition for review.
PETITION FOR REVIEW DENIED
17
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